BRIAN J. McCAFFERTY v. JUST FOR MEN, COMBE INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1600-10T1

BRIAN J. McCAFFERTY,

Plaintiff-Appellant,

v.

JUST FOR MEN, COMBE INC.1,

Defendants-Respondents,

and

WALGREENS DRUGS,

Defendant.

_____________________________

December 9, 2011

Argued November 15, 2011 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey,Law Division,Morris County, L-3497-

02.

Henry J. Aratow, Jr. argued the cause for appellant.

Michael J. Sweeney argued the cause for respondents (Russo, Keane & Toner, L.L.P., attorneys; Alan S. Russo and Mr. Sweeney, on the brief).

PER CURIAM

Plaintiff appeals from a July 9, 2010 order dismissing his complaint with prejudice under Rule 4:23-5(a)(2), and from an October 5, 2010 order denying his motion for reconsideration and to restore the complaint to the active calendar. Based on the unusual circumstances of this case, we reverse and remand this matter to the trial court.

I

This appeal results from a series of errors. Plaintiff's personal injury complaint was filed in 2002. The complaint was dismissed without prejudice in 2004, due to plaintiff's failure to provide discovery, but it was reinstated by consent, by order dated October 13, 2005. Thereafter, the parties continued to engage in discovery. In September 2007, defendants again moved to dismiss without prejudice, due to plaintiff's failure to appear for an IME.

On this record, however, there is no dispute that the parties resolved that discovery motion through another consent order. According to a December 4, 2007 letter from defendant's then-attorney to plaintiff's counsel, the parties signed the stipulation on "November 8, 2007." Defense counsel's letter further recited that "[t]he stipulation was reduced to an order signed by [the motion judge] and filed on November 16." However, for reasons not satisfactorily explained on this record, the attorneys do not have a copy of the consent order in their files.

For reasons also not satisfactorily explained on this record, the clerk's office entered a notation on the case management system that the case was dismissed without prejudice. Apparently, either this was an erroneous entry or the court signed the wrong order in the case and neither party received a copy of that order. By the time counsel learned, in 2009, that the case was dismissed, the file had been archived and, after searching in response to counsel's request, the clerk's office could not find a copy of the purported dismissal order.

Meanwhile, believing that their consent order had been filed and the dismissal motion resolved, plaintiff's counsel and the original defense attorney continued taking discovery. As part of that process, plaintiff appeared for his IME on January 4, 2008, thus providing the discovery that was the subject of the 2007 motion.

At some point thereafter, a new defense attorney from the same firm took over the case. On October 23, 2009, that new attorney sent plaintiff's counsel a letter enclosing a document demand and asking to discuss "the next step in the litigation process" because the case "appears to have been marked 'dismissed' in the court[']s computers for over two years." He asserted that "this constitutes abandonment." Defense counsel sent a second letter on November 30, 2009, again asserting that the dismissal "constitutes abandonment" and threatening to file a motion to dismiss the case with prejudice if plaintiff's counsel did not respond to his letter. On December 15, 2009, defense counsel filed a motion to dismiss the case with prejudice "pursuant to R. 4:23-5(a)(2) or in the alternative . . . without prejudice pursuant to R. 4:23-5(a)(1)."

Plaintiff filed opposition, supported by a certification of plaintiff's counsel, explaining that the case had been dismissed in error and asking that the case be reinstated to the active calendar. He stated:

As to the matter being dismissed and the file placed into storage by the court, I am at a loss to explain this. The fact of the case's inactivity only became known to me in the context of this motion and the correspondence leading up to it. I submit that the matter should never have been dismissed, and that it should be reinstated to the active calendar.

Neither me nor my adversary filed any motions, received any orders, nor were sent any notices of a sua sponte action on the Court's part after November 2007.

In fact, when I called the clerk's office asking about the file, I spoke with [an employee] who informed me that the matter had been dismissed in 2007, and the entire file had been archived. . . . Ironically [after this motion was filed] I received a call from a woman in the clerk's office asking if I had a copy of the dismissal Order as . . . they could not locate it.

In his certification, the attorney also explained that his adversary had sent him a letter on December 4, 2007 confirming that the consent order resolving the discovery motion had been filed and signed by the judge. He attached a copy of that letter to his certification. He also confirmed that his client had attended the IME that was the subject of the original discovery motion. He further asserted that he had "received no notices from the court, and no trial dates, yet continue[d] to act in accordance with the case being active, not knowing that the case had been inadvertently dismissed." He contended that scenario "hardly constitutes a willing abandonment."

In his motion, defense counsel waived oral argument unless opposition was filed. Since this was a motion to dismiss with prejudice, under Rule 4:23-5(a)(2), appearance was "mandatory for the attorney for the delinquent party" and optional for the movant's attorney. In a letter sent to the judge's chambers dated February 25, 2010, (with copy to his adversary) defense counsel confirmed that "there will be oral argument scheduled on March 5, 2010 at 9 a.m. at the Judge's courtroom." However, an April 2, 2010 letter from defense counsel to the judge's law clerk confirmed that, although both counsel had specifically requested oral argument of the motion, the court would not hear argument. Another letter from defense counsel to the law clerk, dated June 30, 2010, repeated that "[w]e had requested oral argument" and "[w]e still request oral argument." He also confirmed that he was told that "part or all of the Morris County Court file may be lost."

Without hearing oral argument, on July 9, 2010, the motion judge issued an order dismissing the complaint with prejudice. In a written statement of reasons, he reasoned that over two years had passed since the 2007 without-prejudice dismissal and there was no proof that "the requisite discovery has been supplied or that there was an order to vacate the previously entered order of dismissal." He also considered that there had been "inactivity on the case for over two years." Therefore, he considered that defendants were "entitled to a dismissal" of the complaint with prejudice.

Plaintiff moved for reconsideration and for reinstatement of the case to the active calendar, pursuant to "Rule 4:50." Once again, counsel requested oral argument, "irrespective of whether opposition is filed." In his certification, counsel explained in some detail the need for oral argument, to permit a fuller explanation of the unusual circumstances. He explained that neither counsel had ever been provided a copy of the purported order of dismissal from November 16, 2007. Plaintiff's counsel also re-explained that he and his adversary had been acting under the impression that the case was still active and that their consent order had resolved the discovery motion.

He also pointed out that, contrary to the judge's statement of reasons, while there had been no activity by the court system, there had been activity by the attorneys on the case after the 2007 order. He confirmed that his client had attended an IME, and that "[s]uch examination, other than the provision of the [IME] report, and any rebuttal witness report(s), was essentially all that the case required." He also attested that after 2007, the parties had engaged in settlement negotiations.

Once again without allowing oral argument, the judge issued an order on October 5, 2010 denying plaintiff's motion. In another statement of reasons, the judge indicated that he had considered the facts set forth in plaintiff's counsel's certification. However, he reasoned that although plaintiff had provided the overdue discovery at issue, "he did not move to vacate the November 17, 2007 dismissal at any point, and he has failed to establish exceptional circumstances that would justify his failure to file such a motion for nearly three years."

II

Ordinarily, we will defer to a trial court's decision to deny a motion to reinstate a complaint, absent an abuse of discretion. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). However, based on the unusual procedural history recited above, we are convinced that in this case the motion judge mistakenly exercised his discretion in dismissing the complaint with prejudice and in denying the motion to reconsider and reinstate the complaint.

To be sure, the procedures followed here were not a model of good practice by any of the participants. The attorneys certainly should have kept track of the 2007 motion. Defense counsel should have ensured that plaintiff's counsel was served with a copy of the filed and signed consent order. See R. 1:5-1 (requiring a party that obtains an order to serve it on the adversary). Plaintiff's counsel should have ensured that a signed, filed copy of an order disposing of the motion was in his file and should have made prompt inquiry if he did not receive an order disposing of the motion. On the court's side, the consent order should have been correctly entered in the case management system and, if a dismissal order was in fact signed, a filed copy should have been sent to the moving party's counsel, thus permitting the error to be promptly detected and corrected. Failure to serve an order of dismissal without prejudice under Rule 4:23-5(a)(1) "defeats [a] subsequent motion to dismiss with prejudice." St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 483 (App. Div. 2008).

Finally, consistent with Rule 4:23-5(a)(2), the motion judge should have honored both attorneys' repeated requests for oral argument. Unlike ordinary discovery motions, which are typically decided on the papers, see R. 1:6-2(c), oral argument of a motion to dismiss with prejudice under Rule 4:23-5(a)(2) is mandatory. See Pressler and Verniero, Current N.J. Court Rules, comment 1.5 on R. 4:23-5(a)(2) (2011) ("Nor may oral argument be waived" on a motion to dismiss with prejudice.); Suarez v. Sumitomo Chemical Co., 256 N.J. Super. 683, 687-88 (Law Div. 1991). While the rule allows counsel for the non-defaulting party to waive his or her appearance, counsel for the defaulting party must appear. R. 4:23-5(a)(2).

In addition, the judge's decisions on the initial motion and the reconsideration motion were premised on a misunderstanding of the facts. Based on the certifications of both attorneys, all counsel believed that the 2007 discovery motion had been resolved and were unaware that the case had been dismissed. Plaintiff's counsel could hardly be expected to file a motion to reinstate a complaint he did not know had been dismissed. See St. James, supra, 403 N.J. Super. at 484. While he should have filed a reinstatement motion as soon as he discovered the apparent docketing error, his failure to do so was somewhat understandable, because the clerk's office was still searching for the lost file and the missing order. Further, his adversary had represented to him in a 2007 letter that the court had signed the consent order.

Moreover, the case had not been inactive from the parties' perspective. They had been actively engaging in discovery. Although it was clear that some sort of error had occurred, because both counsel acknowledged that they had signed and filed a consent order resolving the 2007 discovery motion, the judge's opinions did not address this important issue.

Finally, a motion to dismiss with prejudice is to be granted unless the delinquent party has filed a motion to vacate the dismissal without prejudice and has either provided the discovery or demonstrated "exceptional circumstances." R. 4:23-5(a)(2). Contrary to the judge's finding on the motion to reconsider and reinstate the complaint, plaintiff had appeared for his IME, which was the discovery sought in the 2007 motion. Plaintiff had also demonstrated "exceptional circumstances," by showing that the original order dismissing his complaint with prejudice had been entered in error and without notice to either party. See St. James, supra, 403 N.J. Super. at 483. That showing would also satisfy the requirements to vacate a judgment for exceptional circumstances under Rule 4:50-1. See Feinsod v. Noon, 272 N.J. Super. 248, 252 (App. Div.), certif. denied, 137 N.J. 314 (1994).

It is fundamental that the Court Rules are to be construed so as to produce a just result and "resolution of disputes on the merits [is] to be encouraged." St. James, supra, 403 N.J. Super. at 484. Absent relief, plaintiff will be permanently deprived of his cause of action due to a series of procedural errors and through no fault of his own. For all of these reasons, we reverse the orders on appeal, and remand this case to the trial court for entry of an order reinstating the complaint. We suggest that a case management conference be held promptly thereafter.

Reversed and remanded.

1 Incorrectly sued herein as Combe Distributing Company, Inc.